Académique Documents
Professionnel Documents
Culture Documents
90 87,
80
70
60
50%
50
40-
30.- _
20 -
0
0
$,500 #1000 1500-4000 $5000 a OVER
for whom magistrates set bail obtained pre-trial release, but in the federal
cases, where the range of "normal" bail is higher by $500 or more, this
figure was reduced to 537.6 Fifteen per cent of the state sample did not
raise bail even when the amount was very low. When the bail was set
higher than $500, the proportion of offenders who could not put up bond
began to rise, and above $1000 the proportion was so great that pre-trial
release became the exception. At the $1500 level the likelihood that the
defendant would remain in prison until his trial occurred was four and
one-half times as great as at the $400 level. In most cases, therefore, the
amount of bail will determine whether or not an offender will regain his
freedom after arrest. One purpose for imposing a higher amount which
would be consistent with the theory of bail would be that the increase in
the defendant's financial stake reduces the likelihood of non-appearance at
his trial. In practice, however, higher bail usually means that appearance
in court is being obtained by holding the defendant behind bars.
In cases involving the constitutional prohibitions against excessive
bail, both federal and state courts have clearly articulated that the purpose
to be achieved in determining the amount of bail is limited to the objective
of insuring appearance for trial. 7 It follows that release may not be ir-
peded by setting high bail for other purposes, such as punishment or the
prevention of possible future criminal activity.8 If the amount is higher
than that reasonably required to fulfill its legitimate purpose, it is constitu-
tionally excessive. 9 This limitation recognizes that the defendant is as yet
merely an accused. The preliminary hearing at which bail is usually set
determines only whether or not there is a prima facie case sufficient to hold
the defendant for trial. Since frequently the defendant is not represented
and no evidence in his behalf is produced, there is no justification for the
imposition of punishment or for a finding of probable future criminality. 10
The guiding factors for determining the amount of bail are summa-
rized in Federal Rule of Criminal Procedure 46(c) : 1
"If the defendant is admitted to bail, the amount thereof shall be such
as in the judgment of the commissioner or court or judge or justice
will insure the presence of the defendant, having regard to the nature
and circumstances of the offense charged, the weight of the evidence
against him, the financial ability of the defendant to give bail and the
character of the defendant."
Courts have also considered the character of the surety, 2 whether the de-
fendant was a fugitive from justice when apprehended,' 3 a record of pre-
vious bail jumping 14 and, in one case, the difficulty of escape from the juris-
diction (Hawaii).15
Except for the nature of the offense charged, these factors vary so
greatly in each case that they cannot be reduced to a rule of general ap-
plicability; but the administrative problems created by the large volume of
8. See United States v. Foster, 79 F. Supp. 422, 423 (S.D.N.Y. 1948).
9. Stack v. Boyle, 342 U.S. 1 (1951); Bennett v. United States, 36 F.2d 475
(5th Cir. 1929). See Commonwealth v. Kardosh, 9 Pa. D. & C. 812 (Northampton
County 1927).
10. In Williamson v. United States, 184 F.2d 280, 281-3 (2d Cir. 1950), Mr. Jus-
tice Jackson, as Circuit Justice for the Second Circuit, allowed bail to convicted
Communists pending an appeal over the contention that the defendants would continue
"a course of conduct and activity dangerous to the public welfare, safety and national
security of the United States." He said: "Imprisonment to protect society from
predicted but unconsummated offenses is so unprecedented in this country and so
fraught with danger of excesses and injustice that I am loath to resort to it, even as a
discretionary judicial technique to supplement conviction of such offenses as those
of which defendants stand convicted." This reasoning applies even more forcefully
to the administration of bail before conviction.
11. These standards have come down from the time of Bracton, see 1 STEPHEN,
A HISTORY OF THE CRIMINAL LAW OF ENGLAND 234 (1883), and were codified in
the Habeas Corpus Act of 1679, 31 CAR. II, c. 2. The same standards have been
applied in Pennsylvania in the only cases discussing the subject. Commonwealth v.
Kardosh, 9 Pa. D. & C. 812 (Northampton County 1927); Commonwealth v.
Williams, 6 Pa. D. & C. 162 (Lackawanna County 1924).
12. Ewing v. United States, 240 Fed. 241 (6th Cir. 1917).
13. It re Grimes, 99 Cal. App. 10, 277 Pac. 1052 (1929) (fact that defendant in
flight when apprehended warrants high bail).
14. In re Lamar, 294 Fed. 688 (D.N.J. 1924) ; Lee's Case, 15 Fed. Cas. 136, No. 8,
180 (E.D. Pa. 1865).
15. International Longshoreman's Union v. Ackerman, 82 F. Supp. 65 (D. Hawaii
1948), rev'd on other grounds, 187 F.2d 860 (9th Cir.), cert. denied, 342 U.S. 859
(1951).
1954] COMPELLING APPEARANCE IN COURT
cases in which bail must be set necessitates the creation of a standard which
can be easily and rapidly applied. It is not surprising, therefore, that the
nature of the offense is in fact the basic standard which guides the decision
as to the amount to be set. On the appellate level, cases dealing with ex-
cessive bail have involved amounts "greater than usually fixed" for similar
offenses. 16 Only then do the courts examine the other variable factors to
determine whether the higher amount is warranted by a proportionately
higher risk.17 The rationale of this reliance on the nature of the offense
charged as the standard to guide bail determination is that as the severity
of the crime and possible punishment increases, the defendant, having more
to fear, becomes more likely to jump bail. Even if this is well founded,' 8
there is no indication of how the range of bail "usually fixed" for a given
offense has been established, and within Philadelphia there is a striking
difference between the bail usually set in state courts and that usually set
in federal courts for comparable offenses. 19 Judge Clark has noted that
this determination on the basis of the nature of the offense "seems to apply
an abstract generality as the norm of decision, without consideration of the
particular facts and circumstances disclosed" in the individual case. 20
The "financial ability of the defendant to give bail" 21 is an obviously
relevant guiding standard if the bail system is to effect the release of as
many defendants as possible pending trial. If an accused appears to be a
good risk, the amount of his bail should be proportioned to his ability to
pay; otherwise, high bail is being used to incarcerate dependable persons.
While some courts have emphasized the importance of this factor,22 in-
ability to raise bail does not in itself render the amount of bail excessive.P
The decision as to how much if any consideration should be given to the
defendant's financial ability is purely discretionary with the court or magis-
16. See, e.g., Stack v. Boyle, 342 U.S. 1 (1951) (up to $100,000 on charges of
violating Smith Act); Spector v. United States, 193 F.2d 1002 (9th Cir. 1952)
($50,000 on Smith Act); People ex rel. Sammon v. Snow, 340 Ill. 464, 173 N.E. 8
(1930) ($50,000 on charge of vagrancy) ; United States ex rel. Rubinstein v. Mul-
cahy, 155 F.2d 1002 (2d Cir. 1946) ($500,000 for Selective Service).
'17. See note 16 supra. "If bail in an amount greater than that usually fixed for
serious charges of crimes is required in the case of any of the petitioners, that is a
matter to which evidence should be directed in a hearing so that the constitutional
rights of each petitioner may be preserved." Stack v. Boyle, 342 U.S. 1, 6 (1951).
18. See text at notes 25-6 infra.
19. See text at note 43 infra.
20. United States ex rel. Rubinstein v. Mulcahy, 155 F.2d 1002, 1005 (2d Cir.
1946).
21. FED. R. Cam!. P. 46(c).
22. Bennett v. United States, 36 F.2d 475, 477 (5th Cir. 1929): "The amount of
the bail bond in a criminal case is largely determined by the ability of the defendant
to give it, and what would be a reasonable bond in a given case can usually best be
determined by the trial judge, because of his familiarity with the facts and the financial
ability of the defendant to give security." See Commonwealth v. Kardosh, 9 Pa.
D. & C. 812 (Northampton County 1927).
23. United States v. Rumrich, 180 F.2d 575, 576 (6th Cir. 1950) ("a person ar-
rested upon a criminal charge, who cannot give bail has no recourse but to move for
trial") ; Ex parte Malley, 50 Nev. 248, 256 Pac. 512 (1927).
1036 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 102
trate setting bail, provided the amount set is not disproportionate to the
general average of bail set for that offense.
In federal cases arising in Philadelphia, a number of defendants who
could not post bond were released on their own recognizance when the
Commissioner believed that they would appear for trial. Except in cases
of assault and battery by automobile, this almost never occurred in the
'state courts and no information was elicited during bail-setting as to the
defendant's financial condition. The elimination of the financial factor
resulted in bail being set in amounts which, as Reginald Heber Smith once
remarked about legal costs, "are too low to deter the rich, but high enough
24
to prohibit the poor."
Other factors which are supposed to be considered, such as the par-
ticular circumstances of an offense and the weight of the evidence against
the defendant, have the same kind of relevance to the risk of non-appearance
as the seriousness of the offense. While this will influence the incentive
to flee, its importance is questionable under modern conditions when the
more serious the charge, the more likely it is that flight will be followed
by a determined and usually successful attempt at apprehension. In Phila-
delphia it was found that most bail jumping was for minor crimes and that
there was none for the most serious offenses 2 5 This emphasizes the fact
that the relationship of such standards to the actual risk of non-appearance
is unknown. No psychological studies were found which cast any light on
the problem of how a court-or magistrate can distinguish the reliable from
the unreliable defendant, and no tests have been made to determine whether
the standards enunciated by judicial or legislative declaration are in fact
reliable indicators. An honest attempt to individualize bail determination
must be plagued by the treacherous uncertainty inherent in predicting
future human behavior.26
Appellate decisions in bail cases are rare. If a defendant is financially
unable to raise bail, he probably cannot afford an appeal which might not
be decided within the normal period of pre-trial detention. Because the
first determination of the amount of bail is in the great majority of cases
also the final determination, it is important to observe how the courts' and
magistrates' almost unreviewed discretion is actually exercised.
was set during the preliminary hearing before a magistrate. 27 For certain
serious state crimes, of which burglary, robbery, rape, and narcotics
offenses are the most important, bail was set by a judge of a common pleas
court.28 In federal cases, the determination was made by a United States
Commissioner.29
Measured by the number of defendants, the proceedings in the magis-
trates' courts are by far the most important. The hearings are held each
morning at 9 at divisional police courts in dingy station houses throughout
the city. Defendants, arrested during the preceding 24 hours, number be-
tween two and twenty depending upon the section of the city. They are
accompanied by lawyers in only 15% of the cases 30 The magistrate must
also dispose of summary offenses, including the overnight drunks. The
presiding magistrate is an elected official who is usually not a lawyer 31
and the assistant district attorney is often the only lawyer present. Police
officers and prosecuting witnesses, who are waiting to testify, mingle with
spectators in the frequently crowded room. The location, conditions and
lack of defense counsel produce an atmosphere which is ill-suited to careful
judicial determination.
The primary purpose of the preliminary hearing is to determine
whether or not there is a prima facie case sufficient to hold the defendant;
and determination of the amount of bail receives, at the most, secondary
consideration. After the police evidence has been presented, the defendant
is warned, in a sometimes hasty and almost unintelligible manner, of his
right not to testify, and then he is given a chance to present a defense. In
27. PA. STAT. ANN. tit. 19, § 51 (Purdon Supp. 1953) provides that with certain
exceptions, see note 28 infra,opower to set bail is given to "any judge, justice, mayor,
recorder or alderman." In all cases observed in this study where bail was set at the
preliminary hearing, the proceedings were before a magistrate, and the material was
obtained in two ways. (1) A sample of 48 hearings between June 25 and August 11,
1953, in which bail was set in 124 cases, were observed. (2) The transcripts of 861
cases in which bail was set were examined. This sample consisted of cases in the
pre-indictment file of the District Attorney's office between June 26 and August 11,
1953.
28. PA. SAT. ANN. tit. 19, § 51 (Purdon Supp. 1953) provides that bail in these
cases can be set by the supreme or common pleas courts or judges thereof or a mayor
or recorder of a city. All cases studied involved bail set before a common pleas judge,
the sample consisting of all 109 felony bail cases passing through the District Attor-
ney's office from March 1 to June 30, 1953. See Rule 51C, Rules of Courts of Oyer
and Terminer and General Jail Delivery and Quarter Sessions of the Peace of Phila-
delphia County, 123 LEGAL I ELLiGENCER 671 (Philadelphia, Dec. 21, 1950), for the
procedure followed, quoted at note 40 infra.
29. Fan. R. CUm. P. 46(c). Bail in federal cases can also be set by judges or
justices. A sample of 208 federal bail-settings was studied by taking the first 25
cases out of each of the last eight docket books of the United States Commissioner, the
cases covering the period from July 5, 1950 to July 2, 1953. Each of these cases was
then traced in the records of the clerk of the District Court for the Eastern District
of Pennsylvania to determine the outcome of the case and to see if the defendant ob-
tained release on bail.
30. Out of 857 hearings, defense lawyers appeared in 130.
31. PA. SAT. ANN. tit. 42, § 1048 (Purdon 1930). The only qualifications for
the position are that the magistrate must be at least 35 years old, be a natural born
citizen or naturalized for at least ten years, and be a qualified voter of Philadelphia
and have been a resident thereof for at least five years. A few of the magistrates are
lawyers.
1038 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 102
addition to this evidence, the magistrate has before him the information in
the docket: name, address, age, occupation (sometimes omitted) and
charge. In some cases he will also have the criminal record, and, in the
15% of the cases in which defense counsel are present, the magistrate may
be given some further information about the defendant relevant to bail
determination.
During the hearings, magistrates frequently interject questions and,
in about one-third of the cases, various factors which are thought to be
relevant to bail will be discussed, such as criminal record, employment,
family status, cooperation with the police, value of property taken, or
amount of damage done. After all the testimony has been concluded, the
magistrate either dismisses the defendant, sets bail for court, or, in cases
in which bail can be set only by a judge, holds the suspect "without bail for
court." The decisions- as to holding the defendant and the amount of bail
are given together, and there was little indication that any independent
thought had been given to the amount of bail.
Because custom or intuition appears to be the basis of bail determina-
tions, it is difficult to ascertain what standards are being applied. How-
ever, the fact that evidence of the crime is the only information which the
magistrate possesses in two-thirds of the cases 3 2 indicates that the nature
of the crime and circumstances behind the particular charge are the
primary factors in bail decisions.
Although theoretically the only purpose to be served in determining
the amount of bail is to assure the defendant's presence at his trial, it was
evident from observation of magistrates' court hearings that this was not
the only objective. Chief Magistrate Clothier stated that bail is used to
"break" crime waves, and in many cases the setting of high bail by the
magistrates was motivated by a desire to keep the defendant incarcerated
until the time of trial. Sometimes, however, a magistrate would exercise
restraint and adhere to the theory of bail. When an assistant district
attorney asked for $1500 bail in one case, the magistrate responded: "Bail
is set to insure appearance. We don't punish people by setting high bail." 3 4
But this example is the exception and normal magisterial practice indicated
that bail was often used for punishment purposes. The following reports
sustain this conclusion and also show that it is frequently assumed in the
hearings, solely on the basis of prosecution testimony, that the defendant
is guilty.
In setting bail for an employee accused of larceny by sneak, one magis-
trate said: "I'll make it $1500-that will hold anybody." One could in-
terpret this as an attempt to create an obligation to appear for trial, but
the disproportionate amount and the lack of concern for the individual
indicate an intent to keep the defendant in jail.
32. In the 124 observed cases, questions relative to bail were not asked in 87.
33. Interview, June, 1953.
34. This and all succeeding quotations from magistrates were either obtained from
the transcripts of the proceedings or were taken down at hearings by the observer
for this study.
1954] COMPELLING APPEARANCE IN COURT
One case inspired the magistrate to exclaim: "Anybody that hits their
mother with a blackjack, there is sure something wrong, lady." When the
assistant district attorney objected to the bail of $1000 by saying that $500
would be sufficient, the magistrate replied: "I disagree with you, Mr.
District Attorney. I feel that the man should be punished and I don't feel
that $500 bail is sufficient." When the defendant's attorney protested the
use of bail as punishment, the magistrate denied such an intention and
reduced the bail to $800.
In setting $600 bail for a numbers offense, the magistrate said: "If
you didn't bite the policeman I wouldn't be so hard. I would be lenient
with you."
In a case involving an auto offense, the magistrate exclaimed: "All
right, I don't like hit and run drivers"; and $800 bail was set.
An assault and battery case, in which the victim was hospitalized,
prompted bail of $1,500 and the explanation: "He is a Puerto Rican.
What a bum."
A defendant charged with injuring his father's eye was told: "Anyone
who hits his father ought to be electrocuted." $1500 bail was set for
further hearing.
Another case involved a Negro woman who intervened after a police-
man had told a Negro boy to stop grabbing the packages of customers
coming out of a supermarket. A heated argument developed into a
fracas, and eight police cars responded to a riot call. The magistrate lec-
tured the defendant on minding her own business and said: "I'm going
to make an example of you." $1500 bail was set.
Another indication of the use of bail for punishment was the practice
of ostensibly setting bail for each offense with which the defendant was
charged. When a defendant's attorney in one case asked for reduction of
bail from $10,000, the magistrate said: "Today we have tvo cases involving
two things. I set $5000 on each case, or $10,000 for court."
For a charge of forgery and false pretenses, bail was set as follows:
"On the M- A- case, $1000; on the M- G-- case, $500; on the other
G- case, $500; the C- case, $500; the S- case, $500; the J- G- case,
$500; the H- M- case, $500." The total for this one defendant was
$4000.
A defendant charged with gambling and assault and battery on an
officer was held on $800 for each offense, or a total of $1600.
Another purpose in setting bail, especially for narcotics cases, was an
endeavor to keep the defendant from continuing his practices by incarcerat-
ing him in jail. In setting bail for a narcotics and assault and battery
offense, one magistrate said: "I'm tired of seeing you in front of me; I'll
hold you in $2500 bail for court. Maybe that will keep you in for a while."
In another case, involving assault and battery on a woman, a police captain
recommended: "I would like to ask for a high bail on this fellow. He
should be kept off the street and we should protect these women. I would
1040 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 102
ask for $10,000 bail." Although the magistrate set $5000, this figure is
still many times above the standard for assault and battery and sufficiently
high to make it very probable that the defendant could not raise bail.
On the other hand, there was a tendency to use low bail when the
magistrate felt that the crime was not a serious one, or when he felt that
there were mitigating circumstances, or when he was not convinced of the
defendant's guilt. In one case, a police officer was charged with driving
a police car while intoxicated and bail was first set at $300. When in-
formed that the defendant had four children and would be severely handi-
capped if forced to raise $300, the magistrate reduced it to $100. 35
Two men were charged with slugging an officer in a case which grew
out of the arrest of sidewalk gamblers who had almost been snatched from
the hands of the police by a disorderly mob of sympathizers. The defense
was that the officer had hit the defendants' mother -first. The magistrate,
noting that it was Mother's Day, released the defendants in the custody
of their mother for a further hearing.36
In a case of public indecency, the magistrate said: "This woman is
positive. Therefore, I'll have to hold him for court, but I'll make bail
very low," i.e., $300 for court.
One magistrate reduced bail twice during a hearing (from $800 to
$600 to $500) when the defendant kept protesting his innocence.
In a case of assault with threat to kill, when the assistant district
attorney suggested $2000 or $1500, the magistrate replied: "I think there
are extenuating circumstances," and he set $1000 bail.
In a numbers case, a magistrate said: "We'll be easy on Murphy,"
and he set $300 for court.
The failure to release defendants on their own recognizance in any
cases except assault and battery by automobile indicates that magistrates
may not be aware of their clear power to release a defendant without
security.37 In one gambling case, in which the defendant's attorney asked
that the defendant be released in the attorney's custody, the magistrate said:
"This District Attorney is gunning for me. They're arresting magistrates
for things like that."
A few cases were observed in which a defendant should not have been
held at all, but the magistrate nevertheless set bail, either to make the
defendants "serve some time" for acts for which they could not be con-
victed or, by finding a prima facie case, to protect the arresting officers
against possible false arrest suits. In one case two defendants were alleged
to have done nothing more than ask the prosecuting witness for change
for $500. The magistrate, apparently recognizing a potential confidence
scheme, held each in $600 bail. The defendants could not raise the money
and thus each spent a month in jail. In an assault and battery case, the
magistrate held the defendant in $300 bail because "I want to protect the
officer so they cannot do anything to you [the officer] ."
On other occasions, gamblers were brought in by detectives with no
evidence. The detectives had been ordered to arrest "known gamblers"
whenever possible to get them to leave the district.88 The magistrates
dismissed the charges in these cases and issued stern lectures to the police
on citizens' rights.
Except for narcotics offenses, the amount of bail set by the magistrates
was usually under $1000. The usual figures were $300, $400, $500, $600
or $800, with gambling offenses averaging $500 and narcotics $1250. One
of the greatest ranges occurred in assault and battery, in which the amount
varied from $300 to $5000. Of 100 assault and battery cases in the District
Attorney's pre-indictment file between June 26 and July 13, 1953, the
distribution of bail was: $300-13; $400-7; $500-29; $600-16; $700-
1; $800-11; $1000-13; $1500-3; $2000-2; $2500-2; $5000-3.
For 81 untaxed liquor cases in a sample taken from the same source
the range was smaller, 21 being under $500, 39 at $500, 20 between $600
and $1000, and one at $1500.
The amount of bail for each crime depended, furthermore, on the
particular magistrate before whom the defendant appeared, for each magis-
trate develops his own intuitive pattern. In a sample of 226 hearings for
gambling offenses the average bail for all cases was $503, but the averages
for some individual magistrates ranged from $382 to $610:
Magistrate $300 $400 $500 $600 $800 $1000 Average
A 0 4 15 14 5 1 $600
B 1 1 10 0 0 0 $475
C 8 2 11 0 0 0 $413
D 6 3 7 10 10 0 $610
E 4 12 1 0 0 0 $382
All magistrates 44 39 81 30 28 4 $503 9
Thus Magistrate D imposed an amount more than $500 in 59% of
his cases, while Magistrate E never imposed more than $500 and was
below that figure in 94% of his cases.
The more serious state offenses are not bailable by a magistrate and
bail can be set only if the defendant through his attorney requests such
action by the Quarter Sessions Court.40 In such instances, a copy of the
38. See, e.g., Philadelphia Evening Bulletin, October 19, 1953, p. 1, col. 4; Phila-
delphia Inquirer, October 20, 1953, p. 1, col. 2.
39. This total includes the individual magistrates shown in the table.
40. See note 28 ,supra. Rule 51C, Philadelphia Quarter Sessions Court, see note
28 stpra, provides: "Informal oral applications for fixing bail without issuing a writ
of habeas corpus or requiring the appearance of the Commonwealth's witnesses may
be made in Quarter Sessions Courtroom No. 2, at 10 a.m. on any day following com-
mitment, provided 24 hours' notice of intention to do so has been given to the district
attorney and to the Bureau of Police. On such application only the police report need
be considered in determining whether bail shall be allowed, and neither the defendant
nor the prosecuting witnesses need personally appear. Only one such informal ap-
plication may be made."
1042 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 102
where in 1952 detainees spent a total of 131,683 days awaiting trial.69 That
such a large volume of defendants are jailed pending trial emphasizes the
importance of examining what disposition is made of their cases and the
effects of imprisonment upon those dispositions.
78. See VOL. DFENDER REP., op. cit. supra note 72, at 3.
79. These offenses comprise the great bulk of jail defendants. Defendants charged
with other crimes were eliminated because the number of jail defendants was too
small to have any validity for comparison with bail cases.
1052 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 102
One of the primary reasons for this difference is the much higher propor-
tion of nol prosses in the bail cases. Only ten out of 417 jail case indict-
ments were nol prossed, or 2.4%, whereas there were 160 nol prosses in
bail cases, or 30.2% of all bail indictments. There are at least two ex-
planations for this markedly lower incidence of nol prosses in jail cases
which should be given considerable weight. First, the jail defendant is
probably unable to obtain the private settlement in lieu of prosecution
which Pennsylvania law provides for minor offenses 80 and is unable to
persuade the prosecuting witness or private prosecutor 8 ' to abandon the
case. Second, while jail cases came to trial in about a month after pre-
liminary hearing,82 the time required to bring a bail case to trial was nine
months.83 Some nol prosses, therefore, may simply mean that the failure
to provide a speedy trial has resulted in the loss of valuable evidence.
However, even when the nol prosse cases are eliminated, 25% of bail de-
fendants who went to trial were not convicted, while jail defendants were
not convicted in only 16.5% of the cases.
80. PA. STAT. ANN. tit. 19, §491 (Purdon Supp. 1953). See discussion in text
at note 100 infra.
81. The common-law rule whereby a private person can initiate criminal prosecu-
tion exists in Pennsylvania. SADLER, CRImiNAL PROCEnuRE IN PENNSYLVANIA § 73
(1937).
82. See note 76 supra.
83. "On the average [bail cases] have to wait nine months before they are tried.
Some, we try to speed up . . . Numbers cases are down to a four month wait and
narcotics to two." First Assistant District Attorney Michael von Moschzisker, quoted
in the Philadelphia Inquirer, Feb. 1954, p. 7, col. 4.
1954] COMPELLING APPEARANCE IN COURT
who was arrested and confined in the station house with him. It is prob-
able that Negro or poorly-dressed defendants are frequent victims of such
violations. That even some well-dressed and apparently reliable defendants
lose their right to outside communication is indicated by a report from a
Quaker defendant who, with some companions, was arrested on July 22,
1953, on a charge of breach of the peace. The charge grew out of an anti-
war street meeting which was broken up by the police, and the case against
the defendants was eventually dismissed. The account of their detention
in the station house suggests how theoretical the accused defendant's pro-
tections may be in some cases:81
"At the time of booking we asked to make our one legal phone call.
The request was repeatedly put off and was never finally granted.
Hallman tried again in the morning, no luck."
After the preliminary hearing defendants who have not posted bail
are detained in the untried section of Moyamensing Prison (Philadelphia
County Prison). There is no statute applicable to these detainees com-
parable to the requirement of free communication for those in police cus-
tody,90 and conditions of imprisonment are substantially equivalent to those
of convicted prisoners. The prison's Board of Inspectors reports: 91
"Although the [untried prisoners] are segregated and allowed a
few special privileges, including additional visitors; the untried pris-
oner generally must be subjected to the same rules and regulations as
the convicted prisoner, as a security measure, due to the limited facili-
ties presently available."
week. 92 The prisoner may write a letter one or two days after his arrival,
and thereafter, if he has no money for postage, the county will pay the
postage for one letter a month. These "privileges" may be lost if the
prisoner is "keyed in," i.e., confined to his cell as a disciplinary measure
for disobedience of prison regulations.
Such regulations aggravate the enforced isolation which is the in-
evitable concomitant of any imprisonment, and are as restrictive as those
which exist in many institutions for convicted offenders. The provisions
for two letters a week and the opportunity to have someone else make
one phone call in his behalf obviously imposed a prohibitive limitation
upon a defendant who wished to prepare a defense, and 28 of the 104
prisoners interviewed blamed the communication restrictions for their
failure to obtain bail.
If the prisoners' complaints are valid, telephone calls placed through
the prison agent sometimes proved to be ineffective as a means of com-
munication. One defendant, trying to contact his mother by phone, was
told by the agent that there was no answer, and the agent refused to call
again because he thought that the mother certainly knew after four days
that the defendant was in prison. Another defendant stated that he had
hoped to raise bail either from his brother, who could be reached at his
home only in the evening, or from his employer, who was located in the
suburbs. The prison agent refused to make either call, the first because
he worked only from 9 to 5, the second because he would not call out of
the city. At the time of the interview the defendant had written a letter
to his brother and was waiting for an answer. Other defendants com-
plained about the restrictions in the hours during which they could have
calls placed. One defendant who came in on Saturday had to wait until
the prison agent next came to work on Monday.
The prison agent regarded these complaints as unjustified, stated that
rules were relaxed in special cases, and said that he refused to make a
phone call only when he felt it would not do any good. 94 But regardless
of the truth of these conflicting allegations, it would seem self-evident that
the statutory requirement as to Philadelphia police station confinement,
that arrested persons "shall be given the opportunity to promptly com-
municate with . . . such persons as they desire," 15 should be extended
to cover the entire period of pre-trial confinement for all defendants through-
out the state. 96 Provisions for unlimited correspondence and reasonably
free access to telephones and visitors would create an administrative burden
which seems small when compared with the handicap placed on defendants
92. Letter dated August 26, 1953 from William J. Ruch, Assistant Superintendent,
Philadelphia County Prison, on file in Biddle Law Library. There has been an im-
provement in telephone facilities since this study was made. See text at note 97
infra.
93. Interview, June 1, 1954, with James J. O'Shea, Jr., prison agent.
94. Ibid.
95. See note 88 .supra.
96. See suggested remedy at text following note 177 infra.
19541 COMPELLING APPEARANCE IN COURT
who are denied those rights. Such a requirement should provide ex-
plicitly that a defendant be permitted to make telephone calls himself,
rather than being required to use an intermediary; many defendants com-
plained that the inability to talk directly with persons outside deprived
them of the opportunity to make persuasive pleas for help. Since the
field study at Moyamensing Prison was made, there has been a small
improvement in this direction. At the instigation of the Voluntary De-
fender, a telephone has been installed from which a defendant personally
can make one call immediately upon arrival at the prison; but no subse-
quent calls can be made and if the number called is answered, that counts
as the defendant's one call even if the person he desires to reach is not
9' 7
there.
For those defendants who must support families, the problems which
are created by pre-trial detention are aggravated. "The situations clamor-
ing most loudly for attention," the Voluntary Defender Association re-
ported in 1953, "involve citizens supporting families from modest earnings
who are imprisoned for several weeks to await trial on relatively minor
charges. Such imprisonment should be kept at a minimum in view of the
disruption to the community occasioned by loss of employment and the
necessity for families to subsist on charity and public assistance." 98 Of
course, for those who are subsequently convicted and sentenced to imprison-
ment, this disruption would eventually follow anyway, but in more than
half the cases this eventuality does not occur. To a somewhat lesser extent
the same consideration applies to defendants without dependents who are
employed at the time of their arrest. When defendants are detained, the
loss of employment may deprive them of the ability to pay for lawyers;
and in the cases in which release follows trial, they may have to resort
to public assistance while seeking a new job. For some defendants deten-
tion is comparable to imprisonment in lieu of payment of a fine, for a
number of those interviewed stated that they could pay for a bail bond if
they could only resume their jobs.
Perhaps the most important result of confinement which may influ-
ence the less favorable dispositions given to jail defendants is the inability
of these defendants when charged with minor crimes to do anything to
get their cases dropped. It seems possible that charges initiated by private
prosecutors may, when the defendant is out on bail, be settled or dropped
informally and that many nolle prosequis may therefore result. However,
it is impossible to draw definite conclusions until a careful study is made
of the policy underlying the use of nolle prosequi by the District Attorney.
This would involve a comparison of its use in cases originated by the
police as against those originated by private prosecutors. 99 A Pennsylvania
statute permits private settlements in minor cases and provides that the
The County Prison's Board of Inspectors has noted that "of those
detained, the majority must be assumed to be innocent and should be treated
accordingly. It is not fair to subject the untried prisoner . . . to the
same routine as that of the prisoner convicted and serving sentence." 102
It would be possible to lessen the degree of punishment attendant upon pre-
trial detention by providing relatively pleasant detention facilities in which
restrictions upon the inmates were limited to those imperatively demanded
by security requirements; one criminologist has suggested "secure indi-
vidual' rooms in buildings equipped much like a clean third-class hotel." 103
The defendants observed in this study, however, were treated almost
exactly like convicted prisoners.'0 4 The police station detention facilities
used prior to preliminary hearing are extremely unpleasant, 10 5 and at
100. PA. STAT. ANN. tit. 19, §491 (Purdon Supp. 1953).
101. Visitors are limited to members of the defendant's immediate family. See
note 92 supra. For an explanation of why visitors other than members of the imme-
diate family are refused visiting privileges, see the report of the Superintendent of the
Philadelphia County Prison, PRisoN RFP., op. cit. supra note 66, at 15: "(a) Because
many inmates are ashamed of the disgrace and don't want it thrown up to them once
they get their freedom-'Remember when I saw you behind bars,' etc. It is a very
practical thought and might save some unpleasant and unhealthy argument. (b) We
have not the facilities to permit unlimited visitation."
102. Id. at 33.
103. TAFT, CRIMINOLOGY 384 (1942).
104. See text at note 91 supra.
105. The following description was published by defendants who spent the night
of July 22-23, 1953, in the 12th and Pine Sts. Police Station: "The cell in which
19541 COMPELLING APPEARANCE IN COURT
Hallman and Walker were lodged was about 6 X 8 feet, with a wooden bench running
the length of the cell, and a toilet. After several requests for cleaning equipment,
we were given a broom and swept out the cell. During our stay there, 21 bugs of
various species were dispatched to their doom, although some escaped to feast upon
their sleeping victims later in the night . . . Hallman by virtue of winning the toss
of a coin slept on the board. The two others in this cell slept on the cement floor,
the soft side of which did not seem to be in evidence. We had to buy our own breakfast
in the morning, plus tip extracted for the service." HALLMAN & WALKER, Op. Cit.
sispra note 89, at 3-4.
106. ". . . we are milling in and out of prison human beings, daily, in a manner
not much better than stock yard methods for cattle . . . Our admission of inmates
is revolting to the decency of an understanding person." PRIsoN REP., op. cit. supra
note 66, at 12.
107. ANNUAL REPORT 1950, PHILADELPXIA COUNTY PRIsoN BOARD OF INSPEcTORS
11 (1951).
108. Visiting Inspectors" Report in PRisON REP., op. cit. supra note 66, at 93.
109. Id. at 31.
110. Recognition of this fact resulted in 1952 in "a meeting at which the most
notorious professional bondsmen voted to go on strike" to protest vigorous enforce-
ment by the District Attorney of laws affecting bail. For an account of this threat
and the way in which it was met see DisT. ATr'Y REP., op. cit. supra note 46, at 15.
1060 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 102
works, but also to see what deterrents are available which would make it
safe to reduce the proportion of jail cases and thus lessen the substantial
sacrifice of defendants' rights which has been found to exist in Philadelphia.
The use of a financial incentive through bail is the product of long
tradition, but under modem conditions the extent to which it deters non-
appearance will vary greatly depending upon the type of bail which is
posted. If the defendant has put up his own property or cash or that of a
friend or relative whom he does not wish to harm, the resulting restraint
upon the accused may be substantial. The amount of deterrence declines,
however, when the defendant purchases a bond from a bondsman or a surety
company,"' especially if there is no provision for cross-indemnification or
if such provision proves to be ineffective. In no case, however, can it
be said that the bail jumper "has in reality bought his freedom," 11 for to
do so would overlook the deterrent effect of not wanting to be a fugitive.
The bail defendant who weighs the advisability of jumping has much
more to consider than the often fictitious increased financial loss to which
he may be subjected. The likelihood that he will be caught and possibly
receive a more severe sentence if convicted may have a much greater impact
on a defendant's decision than forfeiture of the bond. Consideration should
be given, therefore, both to bail and to non-financial deterrents; for the
extent to which the latter can be strengthened presents a method for
mitigating the harsh prejudice against the indigent which is an inevitable
product of exclusive reliance on financial incentives to induce appearance.
114. Letter dated May 14, 1953 from E. Burke Montgomery, Clerk of The
Recorder's Court, Detroit, Mich., on file in Biddle Law Library.
115. Of a total amount of $382,450 bail posted in the office of the bail clerk of
Quarter Sessions Court for the months of November and December, 1952, the propor-
tion posted by surety companies had risen to 60%, and that posted by professional
bondsmen had declined to 10% and by private sources to 30%.
116. Information as to practices of the District Attorney's office was received
from the Assistant District Attorney in charge of the Bail Division, Stanley
Bashman.
117. PA. STAT.ANN. tit. 19, § 53 (Purdon 1930).
118. See PA. STAT. ANN. tit. 53, § 6995 (Purdon 1930) for section delegating to
the Attorney General of the Commonwealth the duty of issuing process upon for-
feitures in Philadelphia County. This power was later delegated by the Attorney
General to the District Attorney.
119. This information was obtained from a docket kept by Assistant District
Attorney Stanley Bashman, which contained the names of all forfeitures, and the
status of the defendants was obtained from trial dockets in the same office. This in-
formation was broken down as to the source of bail and the crime of which the de-
fendant was accused.
1062 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 102
120. Letter dated July 31, 1953, from Leonard F. Fuerst, Clerk of Courts,
Cuyahoga County, Cleveland, Ohio, on file in Biddle Law Library (from 1947 to
date of letter an average of 343 bonds posted annually and a total of 51 forfeitures for
same period).
121. See note 114 supra.
122. Letter dated June 24, 1953, from James F. Malone, Jr., District Attorney,
Allegheny County, Pittsburgh, Pa., on file in Biddle Law Library.
123. Letter dated May 17, 1954, from Michael J. Dillon, County Attorney,
Hennepin County, Minneapolis, Minn., on file in Biddle Law Library.
124. Letter dated May 12, 1954, from Emmet J. Lynch, District Attorney,
Schenectady County, N.Y., on file in Biddle Law Library.
125. One explanation for this is that far fewer defendants charged with these
serious crimes are admitted to bail, but at least some of these defendants are released.
See note 68 supra.
126. Out of 215 bonds which were not remitted, only 43, or 20% of the total
number, were collected. The value of the collected bonds was $22,200, or 17% of the
total of $127,500 which should have been collected.
127. "In 1952, one hundred ninety-seven judgments having a total value of
$120,000.00 were entered in cases where defendants had jumped bail. $20,732.00 was
collected on judgments. Arrangements were made with many bondsmen to pay off
in weekly or monthly installments judgments totaling $35,700.00. This collection plan
is being ever broadened and it is hoped that soon there will be a minimum of old
unpaid judgments on the books." DrST. ATT'y REP., op. cit. supra note 46, at 14-5.
1954] COMPELLING APPEARANCE IN COURT
35
31
30- 28
25
20
15. 13
10-
5-
90%
90
75 76*'Y
60
IS
01
SURETY PROFESSIONAL PRIVATE
COMPANY BONDSMEN SOURCES
FIGuRE 5. PERCENTAGE OF BONDS FORFEITED, AND NOT LATER
REMITTED, WHIcH WERE NOT COLLECTED
similar response was given by some New York prosecutors who were
questioned. 145 In New York County, however, eight or nine cases a month
are referred to the Grand Jury, 14 and in Kings County (Brooklyn), the
practice is "to indict in all cases where [the District Attorney] believes
the forfeiture is wilful." 147 Thirteen bail-jumping indictments during the
last six years are reported in Brooklyn and the District Attorney believes
that the statute is a valuable deterrent because "an experienced bondsman
will impress upon his principal the necessity of appearing whenever re-
quired to do so and will also make known to his principal the consequences
of his failure to do so." 148
Such a statute serves a useful purpose in cases in which there is no
other sufficient deterrent against a temptation to flee and avoid or delay
trial. It represents a step towards recognition of the fact that the threat
of apprehension is the major deterrent against non-appearance, and may
foreshadow the day when appearance for trial will be enforced by a criminal
sanction instead of by a bail bond system.
CONCLUSIONS
More than twenty years ago the Wickersham Commission pointed to
the need for research on bail "in the direction of the individualization of
bail determinations based on the history, character, standing, personality
0
and record of the accused." 149 The Supreme Court in Stack v. Boyle 15
held that such an individual determination was a constitutional require-
ment, and the concurring opinion of Justices Jackson and Frankfurter
stated that fixing "a uniform blanket bail chiefly by consideration of the
nature of the accusation [which] did not take into account the differences
ney, St. Louis County, Duluth, Minn., on file in Biddle Law Library (". . . we do
not have a serious problem in bail jumping in our county"; statute invoked twice in
25 years).
145. William Kerwick, Assistant District Attorney, Queens County, New York,
stated in an interview in June, 1953, that he could recall of its being invoked only once
in the past 20 years. See also letter from Emmet J. Lynch, supra note 124. The
statute has been invoked "on occasions" in Buffalo. Letter dated May 13, 1954 from
John F. Dwyer, District Attorney, Erie County, Buffalo, N.Y., on file in Biddle
Law Library.
146. Letter dated June 4, 1954, from Harold R. Shapiro, Assistant District Attor-
ney, County of New York, New York, N.Y., on file in Biddle Law Library. "Most
of the cases of bail-jumping presented to the Grand Juries of this County have re-
sulted in indictments or informations, as the case required, and in most instances
these, in turn, have resulted in guilty pleas or have been covered on disposition of the
main case." Ibid.
147. Letter dated May 17, 1954, from Edward S. Silver, District Attorney, Kings
County, Brooklyn, N.Y., on file in Biddle Law Library. Disposition of these cases
included four sentences of imprisonment, two suspended sentences, one sentence to
time served while awaiting trial, and three indictments still pending while the de-
fendants are serving their sentences on the principal charges.
148. Ibid. See also letter from Harold R. Shapiro, supra note 146 (the statute
"has had a salutary effect in deterring persons from violating the conditions upon
which they have been released on bail").
149. NATIONAL Co ,IssION ON LAW OBSERVANCE & ENFORCEMENT, REPORT ON
PROSECUTION 12 (1931).
150. 342 U.S. 1 (1951).
1070 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 102
151. Id. at 7, 9.
152. See text at note 26 mtpra.
153. FED. R. Cgiua. P. 32(c) (2): "The report of the presentence investigation
shall contain any prior criminal record of the defendant and such information about
his characteristics, his financial condition and the circumstances affecting his be-
havior as may be helpful. .... "
1954] COMPELLING APPEARANCE IN COURT
case; the defendant is warned that anything he says may be used against
him, and it is usually to his advantage to say nothing. Yet in the 35%
of the cases in which the question of bail determination was given inde-
pendent consideration, the discussion was intermeshed with the hearing
on the prima facie case, for which purpose the defendant had been cau-
tioned against speaking. Nor are the magistrates who make the decision
qualified to exercise the broad discretionary power which individualization
must repose in them. The fact that most magistrates in Philadelphia are
not lawyers aggravates this problem. While this may not be a major
consideration, at least a lawyer-magistrate would be more likely to recog-
nize that the preliminary hearing determines merely whether or not a
prima facie case exists, that presentation of the police case does not estab-
lish the defendant's guilt, and that the use of bail for punishment is im-
proper.
It seems improbable, therefore, that there can be any substantial im-
provement in bail determination beyond the kind of practices which were
observed in this study. The volume of cases requires the use of a rule of
thumb; the fact that hearings are held before the lowest level of the
judiciary and that appeals are usually impracticable makes a considerable
amount of abuse inevitable; and the employment of a pre-bail investigation
to develop information about the defendant would involve prohibitive ex-
pense and the denial of bail to all defendants for the time necessary to make
the investigation.
In any event, improvement in the method of bail determination would
not resolve the central problem of the bail system unless bail for each
defendant was to be set for an amount not in excess of what that particular
defendant could afford. As long as the yardstick for determining what
constitutes excessive bail is the range within which bail is "usually set"
for comparable offenses,15 4 there will be defendants who are denied pre-
trial release. The only resolution of the clash between bail and defendants'
rights is to abandon the necessity of bail for defendants who are financially
unable to obtain it, and if society can afford to take this risk with indigents,
it can take it with all defendants.
The feasibility of such a step depends upon the extent to which it
might increase the number of fugitives. Since most bail is commercially
provided, the financial deterrent against bail jumping 'is usually fictitious.
If there were an appropriate criminal sanction against non-appearance which
was directly enforced by the police, it is extremely improbable that there
would be any increase in the number of fugitives from among those who
now post bail.
The unknown risk which the abandonment of bail would require society
to assume is the possibility that the type of defendants who are now jailed
are so much more unreliable as a group that their pre-trial freedom would
substantially increase the incidence of non-appearance. It is impossible
to determine how much weight should be given to this possibility; 155 the
untested assumption that there is a high correlation between financial in-
ability and the likelihood of non-appearance is the strongest argument for
the retention of bail.
This risk can be minimized in several ways. First, the enactment of a
law which penalizes failure to appear in court when ordered would invoke
a direct deterrent against trying to flee. Second, speeding up the trial of
bail cases would decrease both the opportunity for a defendant to commit
new crimes while awaiting trial and would operate as an indirect preventive
to reduce non-appearance. Defendants who have little tie to the city are
much more likely to wander off if their case will not be reached for nine
months than would be the case if trial followed preliminary hearing by
not more than a few weeks.
With such correctives the degree of risk created by releasing the jailed
defendants does not appear to be large. When this risk is weighed against
the substantial impairment of defendants' rights which is the concomitant
of the present system, an unwillingness to experiment in the direction of the
abolition of bail perpetuates the overemphasis on security at the expense
of individual rights which is an anomaly in our system of criminal justice.
RECOMMENDATIONS
to communicate freely with persons outside the jail, thus reducing the handi-
cap which is caused by pre-trial confinement. No separate recommenda-
tions are made here for improving the efficacy of collection of forfeited bail,
suggested remedies having been previously discussed. 156
(1) Making Non-appearancea Criminal Offense
The ultimate abolition of the bail system is the only solution for the
prejudice to jail defendants which results from their low economic status.
A prerequisite for this development is a statute which sets up a direct sanc-
5 7
tion against non-appearance. The statute proposed in the margin
156. See text at notes 129-33 supra.
157. While this study was limited to an examination of problems concerning
defendants held pending trial, see note 1 supra, the following proposed statute is
drafted to include persons bailed or otherwise released after conviction, pending an
appeal or pending appearance as a witness.
The purview of the proposed statute follows:
Section 1. Whoever, having been charged with a criminal offense, or having
been held for appearance as a witness, and having been admitted to bail, or
served with a summons to appear for a preliminary hearing, or otherwise re-
leased pending appearance as a witness or for a preliminary hearing or for trial
or pending the outcome of an appeal, does not, without lawful excuse, present
himself at the proper time and place, is guilty of an offense, and, upon convic-
tion in a summary proceeding, shall be sentenced to a fine not exceeding one
hundred dollars ($100), or to imprisonment not exceeding thirty (30) days, or
both.
Section 2. Whoever violates Section 1 of this Act and, in addition,
does not surrender himself within thirty (30) days following the date of his
failure to appear, if bail was given or release obtained in connection
with a charge of felony or pending appeal or certiorari after conviction of any
offense, is guilty of a felony, and, upon conviction, shall be sentenced to pay a fine
not exceeding five thousand dollars ($5,000), or to imprisonment not exceeding
five (5) years, or both.
Section 3. Whoever violates Section 1 of this Act and, in addition, does
not surrender himself within thirty (30) days following the date of his failure
to appear, if bail was given or release obtained in connection with a charge of
committing a misdemeanor, or for appearance as a witness, is guilty of a mis-
demeanor, and, upon conviction, shall be sentenced to pay a fine not exceeding
one thousand dollars ($1,000), or to imprisonment not exceeding one (1) year,
or both.
Section 4. In all proceedings under this Act, proof that the defendant
did not present himself at the proper time and place is prima fade evidence
of a violation of this Act.
Section 5. A person admitted to bail or otherwise released pending ap-
pearance before any court shall furnish his address and shall give written notice
of any change of address to the District Attorney and the clerk of the court
before which he is to appear. Whoever furnishes a false address, or fails to give
written notice of any change of address to the District Attorney and the clerk
of the court before which he is to appear within 48 hours after he has changed
his address, is guilty of an offense, and, upon conviction in a summary proceed-
ing, shall be sentenced to a fine not exceeding one hundred dollars ($100), or to
imprisonment not exceeding thirty (30) days, or both.
Section 6. Before a person is admitted to bail or otherwise released pending
appearance as a witness or for preliminary hearing or for trial, he shall be
photographed and fingerprinted, and shall be given a written notice clearly ex-
plaining the requirements and penalties provided for by this Act. If such person
is released pending a preliminary hearing, he shall be served with a summons
which shall state clearly the time and place at which he is to appear. If such
person is released pending appearance as a witness or defendant before any
court, he shall be given at least five (5) days notice by registered mail of the
time and place at which he is required to appear.
1074 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 102
provides a severe penalty for fugitives who do not appear within 30 days
of the time required; proscribes "judge-jumping" by providing a lesser
penalty for those who do not appear on the day required but do appear
within 30 days; protects the defendant when he has a lawful excuse for non-
appearance, but makes proof of non-appearance constitute prima facie evi-
dence of a violation; and protects both the state and the defendant by
requiring fingerprinting before release and by appropriate notice provisions.
158. E.g., MAss. ANN. LAWS c. 276, §§ 24-5 (1933): "Upon a complaint for
a crime punishable by fine only, or by imprisonment for not more than one year,
with or without a fine, a summons may be issued instead of a warrant for arrest, if,
in the judgment of the court or justice receiving the complaint, there is a reason to
believe that the defendant will appear upon a summons." Provision is made for
service "not less than twenty-four hours before the return hour."
159. The following form is recommended:
In all cases in which the offense which the defendant is alleged to have com-
mitted is an offense which can be tried summarily, or a misdemeanor, or larceny
or fraudulent conversion where the value of the property involved is less than
$200, prosecution shall be begun by summons instead of by warrant of arrest.
In no such case shall any warrant of arrest be issued except upon affidavit
showing reasonable cause to believe that the defendant will probably flee the
jurisdiction. In any other case which is bailable as of right, prosecution may be
initiated by summons instead of warrant of arrest, whenever there is no reason-
able cause to believe that the defendant will probably flee the jurisdiction.
Compare the similar but less extensive provisions of Senate Bill No. 459, Session
of 1953, Pennsylvania Legislature.
160. See note 157 supra.
161. If it was necessary to photograph or fingerprint the defendant, he could
be taken into custody for this purpose and then served with a summons and re-
leased. The same procedure could be followed in the case of a defendant arrested on
sight.
162. McNair's Petition, 324 Pa. 48, 187 Atl. 498 (1936).
19541 COMPELLING APPEARANCE IN COURT
without bail added that this "is a practice not to be recommended or en-
couraged." 1 Specific legislative direction will be required to reverse this
trend. It is particularly important to require pre-trial release in cases in 64
which Pennsylvania authorizes private settlement in lieu of prosecution,
unless there are circumstances creating an exceptional risk of non-
appearance. Pre-trial detention deprives defendants of this remedy, and
existence of the provision for private settlement indicates a judgment~about
the minor nature of the offenses which makes pre-trial imprisonment par-
ticularly unjustifiable. The statute proposed in the margin 16 encourages
the use of release without bail in all cases in which there is no unusual
risk of non-appearance, and enables greater utilization of the provision for
private settlement.
Another recommendation which will reduce the incidence of pre-trial
detention is a requirement that a defendant who is in custody be given a
prompt preliminary hearing at which bail will be set in all cases. The
division of responsibility in Pennsylvania, under which magistrates cannot
set bail for serious offenses, resulted in Philadelphia in a substantial infringe-
ment of the constitutional right to bail. 6 6 Under this procedure, some
defendants were unaware of their right to bail, bail was never set for many
defendants, and those who did obtain release were detained five days or
longer after their preliminary hearing before release was effected. The
recommended statute 167 abolishes this division and requires that bail shall
be set in all cases when the defendant is first brought up for preliminary
hearing, preventing prolongation of the period of police detention by a con-
tinuance of a preliminary hearing in a case for which the magistrate cannot
now set bail.
$500 except under special circumstances where the higher amount would
not prevent the release of the defendant and would result in an added
deterrent against bail jumping."72 The figure of $500 is chosen because
of the sharp rise in the number of defendants who cannot raise bail in an
amount above that figure. Such a provision is no help for the impecunious
defendant who cannot post even this much bail and to that extent dis-
criminates arbitrarily against the indigent. As has been indicated, there
is no solution for that problem short of the abolition of bail, and this recom-
mendation is at best a compromise with that goal.
Because this limitation will severely restrict the use of high bail for the
deliberate purpose of incarcerating defendants pending trial, mention will be
made of two ways in which objectives which typically prompt the use of
excessive bail can be remedied.
If it is feared that the defendants will commit further crimes if re-
leased on bail, the remedy is not preventive detention but a prompt trial. 73
Administrative brocedures could be evolved to achieve this end, and in
Philadelphia some progress has been made in this direction with narcotics
and numbers offenders. 174 One problem connected with speeding up trials
in cases in which there is an apparently high risk of further criminality is
the Pennsylvania requirement that all defendants be indicted by the grand
jury. The Philadelphia District Attorney has recommended a constitu-
tional amendment to eliminate the grand jury entirely,"75 but even without
this change it is possible to speed up the indictment process and bring
the defendant to trial in a very short time. A speedy trial is a much more
172. The recommended statute provides:
Whenever bail is required, the amount set shall not exceed $500 unless it is
shown, in addition to the fact that the circumstances of the case are such as to
create a high risk that the defendant will not appear, that
(a) there is reason to believe that the defendant is able to afford the
higher amount of bail; and
(b) there is reason to believe that the result of imposing higher bail will be
to make it more probable that the defendant will appear for his trial than would
be the case if the amount of bail was not in excess of $500.
In any case in which bail is set in excess of $500 in accordance with this
section, the record shall state with particularity the findings of fact upon which
the court or magistrate relied.
173. "From time to time, armed robbers or narcotics peddlers who have exer-
cised this Constitutional right [to bail], commit a second crime while awaiting trial
for the first crime. Great excitement then ensues and some people argue that the
defendants should never have been at liberty on bail. This in turn leads to criticism
of the Courts, which is unjust since they are sworn to uphold the Constitution and,
therefore, they must fix bail and may not fix unreasonable bail. The best way to
eliminate a bad bail situation is the prompt trial of bail cases. That can be ac-
complished in Philadelphia if there is a further increase in the number of court rooms
devoted to criminal trials. Such an increase would raise numerous questions of man
power but, by proper planning, all such problems can be solved." DIsT. Avr'y
REP., op. cit. supra note 46, at 14.
174. "Numbers cases are down to a four month wait and narcotics to two. We
try to speed up the numbers cases because they involve men and women who have
set out deliberately to break the law. The narcotics cases need quick handling be-
cause of the danger of having such people at large." First Assistant District At-
torney Michael von Moschzisker, quoted in The Philadelphia Inquirer, Feb. 15,
1954, p. 1, col. 1.
175. DisT. Ar'Y RP., op. cit. supra note 46, at 40.
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